Smt. Geetaben N. Kapadia, Surat V. The ACIT.,Cent.Circle-4, Surat

MA 116/AHD/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4868 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Unexplained investment; Gift; Peak credit; Set aside
• Section: 254(2); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA NO.116/AHD/2017 [ARISING OUT OF IT(SS)A NO.159/AHD/2011] ASSESSMENT YEAR: (2006-07) (VIRTUAL COURT HEARING) SMT. GEETABEN N. KAPADIA, PROP. GNK JARI INDUSTRIES, 3/1810, GHAMLAWAD, SHERI NO.1, GHAMLAWAD, SURAT. VS. THE ACIT, CENTRAL CIRCLE-4, SURAT. ./ ./ PAN/GIR NO.: AAVPK4396H (REVENUE) (ASSESSEE) ASSESSEE BY : SHRI HIREN VEPARI, CA REVENUE BY : MS ANUPAMA SINGLA - SR. DR / DATE OF HEARING : 23/04/2021 /DATE OF PRONOUNCEMENT : 17/05/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY WAY OF CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 19.09.2014. 2. THE CONTENTION OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT THE TRIBUNAL HAS ALLOWED THE APPEAL IN FAVOUR OF THE ASSESSEE TO EXTENT OF PEAK BALANCE CONTESTED IN SERIAL NO.1, 3 & 4 ( VIDE TABLE OF PEAK BALANCE, GIVEN IN PARA NO.5 OF THE TRIBUNAL ORDER), WHEREIN THE TOTAL SUM OF PEAK BALANCE FOR BANK ACCOUNTS CAME TO RS.22,57,654/-. THE PARA NO.5 OF THE TRIBUNALS ORDER IN IT(SS)A NO.159/AHD/2011 FOR AY.2006-07 ORDER DATED 19.09.2014, IS REPRODUCED BELOW FOR READY REFERENCE: 5. SIMILARLY, IN ITA(SS) NO. 159/AHD/2011 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE SMT. GEETABEN N. KAPADIA HAS RECEIVED INVESTMENT IN HER ACCOUNTS WITH CENTURION BANK LTD., SURAT AS UNDER: A/C NO. FINANCIAL YEAR PEAK BALANCE 0041-097733-020 2005-06 10,01,000 0041-093100-001 2005-06 2,02,067 0041 -097708-051 2005-06 5,53,587 PAGE | 2 MA NO.116/AHD/2017 ASSESSMENT YEAR.2006- 07 SMT. GEETABEN N. KAPADIA 0041-097680-020 2005-06 5,01,000 TOTAL 22,57,654 WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. THEREFORE, HE ADDED THE SAME U/S. 69 OF THE ACT AS GIFTS RECEIVED BY THE ASSESSEE. 3. HOWEVER, THE TRIBUNAL HAS CONFIRMED AN ADDITION OF RS.2,02,067/- AGAINST PEAK BALANCE OF SERIAL NO.2 OF THE ABOVE TABLE ON THE GROUND THAT THE ASSESSEE FAILED TO MAKE ANY SUBMISSION ON THE SAME. THE TRIBUNAL HAS OBSERVED AND ADJUDICATED THE PEAK BALANCE OF RS.2,02,067/- OBSERVING AS FOLLOWS: 12. RESPECTFULLY FOLLOWING THE ABOVE QUOTED DECISION OF THE TRIBUNAL, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE ADDITION OF RS 15,73,515/- IN THE CASE OF SHRI AMIT N. KAPADIA AND RS 20,55,587/- IN THE CASE OF SMT. GEETABEN N. KAPADIA BY HOLDING THAT THE DEPOSITS WERE MADE IN THE SAID BANK ACCOUNTS DURING THE ASSESSMENT YEAR 2005-06 AND THEREFORE ADDITION CANNOT BE MADE DURING THE YEAR UNDER APPEAL FOR UNEXPLAINED INVESTMENT. HOWEVER, THE ASSESSING OFFICER WILL BE AT LIBERTY TO TAKE COGNIZANCE OF THESE DEPOSITS IN THE ASSESSMENT YEAR 2005-06 AS PER LAW. FURTHER, WE OBSERVE THAT IN THE CASE OF SMT. GEETABEN N. KAPADIA, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS MADE ABSOLUTELY NO SUBMISSIONS FOR THE ADDITIONS MADE IN THE FOLLOWING BANK ACCOUNT: A/C NO. FINANCIAL YEAR PEAK BALANCE 0041-093100-001 2005-06 2,02,067 THEREFORE, WE CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF THE ADDITION OF RS 2,02,067/-. THUS, THE APPEAL IN THE CASE OF SHRI AMIT N. KAPADIA IS ALLOWED AND THE APPEAL IN THE CASE OF SMT. GEETABEN N. KAPADIA IS PARTLY ALLOWED. 4. THEREFORE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AGAINST THE ORIGINAL PEAK BALANCE OF RS.2,02,067/- OF BANK ACCOUNT OF SERIAL NO.2 OF THE ABOVE TABLE GIVEN IN PARA NO.2 OF THIS ORDER, ONLY THE SAME WAS CONSIDERED BY THE ASSESSING OFFICER WHILE MAKING THE ADDITION IN THE ASSESSMENT ORDER, HOWEVER THE SAME HAS NEVER BEEN CONTESTED BEFORE THE TRIBUNAL, THEREFORE ADDITION MADE BY THE TRIBUNAL ON ACCOUNT OF PEAK CREDIT OF THE SAID BANK AT RS.2,02,067/- MAY BE DELETED. 5. ON THE OTHER HAND, MS ANUPAMA SINGHLA, LD. DEPARTMENTAL REPRESENTATIVE (IN SHORT THE LD. DR) FOR THE REVENUE SUBMITTED THAT THE PEAK OF THE SAID BANK ACCOUNT OF RS.2,02,067/- HAS BEEN COMING FROM THE ASSESSMENT ORDER AND IT IS A PART OF FACTS BEFORE THE TRIBUNAL, THEREFORE THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. PAGE | 3 MA NO.116/AHD/2017 ASSESSMENT YEAR.2006- 07 SMT. GEETABEN N. KAPADIA 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE SUBMISSIONS PUT FORTH ON BEHALF OF THE ASSESSEE. WE NOTE THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DEALT WITH ACCOUNT NO.0041-093100-001 FOR AY.2005-06, AT RS.2,02,067/- WHICH IS RECORDED BY THE ASSESSING OFFICER AT PAGE NO.6 OF HIS ORDER WHICH IS REPRODUCED BELOW: THE DETAILS OF THE INVESTMENT MADE IN THE IMPUGNED BANK ACCOUNT ARE AS UNDER: ACCOUNT NO. F.Y. PEAK BALANCE 0041-097733-020 2005-06 1001000 0041-093100-001 2005-06 202067 0041-097708-051 2005-06 553587 0041-097680-020 2005-06 501000 TOTAL 22,57,654/- THUS, IT IS EVIDENT THAT SUMS OF RS.20,57,654/- FOR F.Y. 05-06, A.Y. 2006-07, HAVE BEEN HELD IN UNACCOUNTED MANNER WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. THESE PEAK CREDIT INVESTMENTS ARE AMOUNTS WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT. 7. ON APPEAL, BEFORE THE LD. CIT(A), WE NOTE THAT THE SAID PEAK BALANCE OF THE SAID BANK ACCOUNT NUMBER HAS NOT BEEN DISCUSSED BY THE LD. CIT(A) IN HIS ORDER. ON FURTHER APPEAL, THE TRIBUNAL HAS ADJUDICATED THE FACT WHICH IS BEING GENERATED FROM THE ASSESSMENT ORDER. SINCE THE OBJECT IS TO ADJUDICATE THE INVESTMENT MADE IN THE IMPUGNED BANK ACCOUNTS. THEREFORE, THE TRIBUNAL AS A FACT FINDING AUTHORITY NOTED THAT THERE WAS A MISTAKE COMMITTED BY THE ASSESSING OFFICER IN MAKING THE TOTAL OF THESE FIGURES. TOTAL SUM OF THESE FIGURES COMES TO RS.22,57,654/-WHEREAS IF WE EXCLUDE THE FIGURE OF RS.2,02,067/-, THE TOTAL OF REMAINING THREE FIGURES COMES TO RS.20,55,587 (22,57,654 2,02,067). HOWEVER, THE ASSESSING OFFICER COMPUTED THE TOTAL AMOUNT OF THE FOUR FIGURES AT RS.20,57,654/-, THUS ASSESSING OFFICER HAS COMMITTED THE MISTAKE WHILE DOING TOTALING OF THESE FOUR FIGURES. WE NOTE THAT SAID AMOUNT OF RS.2,02,067/- WAS ALSO ADJUDICATED BY THE ASSESSING OFFICER INCLUDED IN HIS WRONG TOTALING OF RS.20,57,654/-. THEREFORE, WE NOTE THAT THERE WAS A MISTAKE IN MAKING THE TOTAL OF THESE FOUR FIGURES AND THIS MISTAKE WAS CARRIED FORWARD UP TO THE ORDER OF THE LD. CIT(A). HOWEVER, THE TRIBUNAL IS A FACT FINDING AUTHORITY AND WHEN THE TRIBUNAL CAME TO KNOW THIS FACT THAT THE AMOUNT OF RS.2,02,067/- HAS ESCAPED IN PAGE | 4 MA NO.116/AHD/2017 ASSESSMENT YEAR.2006- 07 SMT. GEETABEN N. KAPADIA THE TOTAL SUM COMPUTED BY THE ASSESSING OFFICER, THE ADDITION WAS MADE BY TRIBUNAL. WE NOTE THAT THE LD. CIT(A) DID NOT TAKE ANY EFFORT TO MAKE THE TOTAL OF THESE FOUR FIGURES OF THESE FOUR BANK ACCOUNTS AND ONLY ADJUDICATE THE SUM OF TOTAL DETERMINED BY THE ASSESSING OFFICER AT RS.20,57,654/-. THE REAL FACT IS THAT SUM OF THESE FOUR FIGURES COMES TO RS.22,57,654/- WHEREAS ASSESSING OFFICER HAS TAKEN WRONGLY AT RS.20,57,654/-, HENCE THE SAID ISSUE WAS THEREFORE BEFORE THE ASSESSING OFFICER AS WELL AS LD. CIT(A). THEREFORE, WE NOTE THAT TRIBUNAL IS RIGHT IN ADJUDICATING THE ISSUE OF THE PEAK AMOUNT OF RS.2,02,067/-, HENCE WE DO NOT FIND ANY ERROR IN THE ORDER OF THE TRIBUNAL. 8. BEFORE PARTING, WE MADE IT CLEAR THAT THIS MISTAKE WAS COMMITTED BY THE ASSESSING OFFICER WHILE DOING TOTALING OF THESE FIGURES AT RS.20,57,654/- AND THE (CORRECT TOTAL COMES AT RS.22,57,654/-) SAID MISTAKE WAS CARRIED FORWARD UP TO CIT(A) AND THEN BEFORE THIS TRIBUNAL. THEREFORE, THE CONTENTION OF LD. COUNSEL THAT THE ISSUE OF THE PEAK AMOUNT OF RS.2,02,067/- WAS NOT BEFORE THIS TRIBUNAL, IS NOT ACCEPTABLE; HENCE WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION (IN MA NO. 116/AHD/2017 FOR AY.2006-07) FILED BY THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED ON 17/05/2021 AT THE TIME OF VIRTUAL COURT HEARING. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE:17/05/2021 SAMANTA COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT